FOIA update: part two

Data inspection iStock 000008204804XSmall 146x219In the second in a two-part series, Eleanor Grey QC looks at key FOI decisions in the last six months on such issues as vexatious requests, crime fighting and confidentiality. 

Vexatious requests and section 14, FOIA

The question of whether requests can be refused on the grounds that they are vexatious has continued to generate much litigation. In the recent case of Ian Pringle v IC and Bury MBC (EA/2012/0062) the Council was chastised by the FTT for being too ready to associate Mr Pringle’s requests with those of a campaign group (it was “too keen to aggregate this request…”). The issue of s14 requests, and caselaw, are well-reviewed by barrister Robin Hopkins on the Panopticon blog; I would refer those who want a fuller account of this topic to his article.

Crime fighting

Mathieson v IC and the Chief Constable of Devon and Cornwall EA/2010/0174 was a ‘repeat’ decision concerning information about the locations of fixed automatic number plate recognition (ANPR) cameras and CCTVs operated by Devon and Cornwall police. An earlier decision favouring release was set aside by the UT in February 2012. A newly constituted FT decided that it would not be appropriate to release the information, applying s24 (national security) and s31 (law enforcement) FOIA. It accepted that the cameras were a “highly effective crime fighting tool”. If their locations were released, and mapped across the country, this could assist criminals. Considering the public interest in maintaining the exemptions, the Tribunal noted that although the risk may be small, if disclosure of the information led to a terrorist incident taking place which might otherwise have been avoided, the results could be catastrophic. It sympathised with the suggestion made that disclosure of this information would be like giving one of the police’s tools ‘back to the criminals’. Ultimately, it concluded that the public interest in maintaining the exemptions outweighed that in disclosure.

Wynn v IC and the Serious Fraud Office EA/2011/0084 confirms the general impression that information covered by exemptions relating to law enforcement are receiving a high degree of protection in the FTT. The case concerned s. 30 (“investigations and proceedings conducted by public authorities”) and a request for information held by the Serious Fraud Office (SFO) about its investigation into the collapse of the Equitable Life Assurance Society. The Tribunal endorsed the account given in Breeze v Information Commissioner of the wide range of concerns protected by the s. 30 exemption. It also noted the importance of a ‘safe space’ for prosecutors, to enable them to make decisions without any fear of candid assessments being publicised too soon after the event. Such factors led the FT to withhold disclosure. It endorsed a proposition that: “in order for disclosure to be ordered in such cases public interest factors of at least equal weight would have to be adduced. A general interest in transparency as to a prosecution authority’s decisions will not be sufficient. Something substantial and particular to the information would be required”.

Personal information and the application of s. 40(2), FOIA

Personal information held by public authorities continues to generate litigation. The case of Trago Mills Limited v IC EA/2012/0028 was about an unsuccessful request for details of an employee’s severance package in circumstances in which the requestor alleged that the employee was guilty of wrongdoing. The case should now be studied alongside the Information Commissioner's new guidance concerning requests for information about public sector employees: (see here). The FTT decision is consistent with the IC's guidance, although the FTT does not seem to have been referred to the Accounts and Audit (Amendment No 2) (England) Regulations 2009, Regulations. These might have provided further evidence of where lines on disclosure should be drawn, in the public interest.

To similar effect was Bousfield v IC EA/2011/0212, which concerned an application to six hospital trusts for the disclosure of the details of doctors' compromise agreements. The FT confirmed that these agreements contained personal data and were exempt from disclosure under section 40(2) FOIA. The Tribunal concluded that, irrespective of a formal agreement relating to confidentiality, compromise agreements were entered into with an expectation of privacy; disclosure of the details was likely to be unfair.

In McFerran v IC (EA/2012/0030), the FT upheld the distinction between releasing the names of senior or ‘public-facing’ officials and the more junior, in the context of a search of Council premises conducted by police, accompanied by Council employees. The FT noted that: “The Appellant has not satisfied us, either, that his attempts to have the matter investigated are being thwarted by the absence of the names of the individuals in question. If there is sufficient information about the event to interest those responsible for an investigation the absence of names will not deter them.”

Also on s. 40(2) is the case of Exeter CC v IC, where a requestor sought a list of all the Council’s housing stock. The Commissioner had held the list should be released, with the exception of details of “any property which is used to house individuals requiring protection in a secret or confidential location …”. The appeal centred on the data protection principle of ‘fairness’. “It was not disputed between the parties that the assessment of fairness required consideration both of the data subjects, but also those who may make use of this data.” The FTT was unimpressed with the argument that Council tenants would not expect to have the fact of their Council tenancies revealed: “the Tribunal observes that who owns property is not a private matter”. The information was of low sensitivity, as FTT did not accept that being in Council housing meant that the individuals concerned were vulnerable, and might be harmed by being targeted by (eg) individuals selling services. Against that, there was a public interest in enabling better scrutiny of the Council’s housing stock and analysis of how it was used and maintained. The Council’s appeal was unsuccessful.

Under the corresponding provisions in the EIRs (regulation 13), the FTT approved the release of building control records relating to roof conversions on residential properties in Sharples v IC.  

Confidentiality

The public interest in maintaining confidences was upheld in the case of Orr v IC and Avon and Somerset Police Authority EA/2012/0077. This involved a joint venture company in which IBM owned a 75% stake, and three West country public authorities owned the remaining minority share. As the latter were in the minority, the company was neither a public authority nor a body which held information on behalf of a public authority, within the meaning of FOIA. The three public authorities received copies of the Board minutes, but on terms of confidentiality. Despite arguments that this arrangement thwarted democratic accountability, the confidentiality of the board minutes in their hands was upheld, applying s41 FOIA. That said, the position might have been different if there had been evidence of wrong-doing:

“If a joint venture company has been formed for the specific purpose of frustrating the duties of disclosure enacted in FOIA ; if public funds are being needlessly squandered in a badly-managed business; if serious conflicts of interest are or may be distorting the company`s operations, then there may be a strong case for disclosing information which reveals such facts, on the ground that disclosure by the requested public authority (here ASPA) would not be actionable.”

Also interesting on this front is John Pim v IC EA/2012/0078, in which the application of Regulation 12(5)(e) of the EIRs, which is also concerned with commercial or industrial confidentiality, was considered. The case concerned a request from Down District Council for a private company’s Business Plan for a Viking re-enactment centre. The FTT was satisfied that the plan would assist business rivals; the confidentiality therefore preserved a genuine public interest. The plan was based on genuine specialist knowledge and research. There was a legitimate public interest in preserving trust between the Council and the private company by withholding release of commercially sensitive material.

Conclusion

The cases reviewed in these two articles have not, perhaps, radically altered practitioners’ understanding of the FOIA or the EIRs. But stability is useful, as it adds certainty and predictability to what is still an emerging area of law. We will have to wait a little longer to see how the Tribunal tackles the subject perhaps most of current interest to practitioners in this area: the size of the fines now being levied by the Information Commissioner for data protection law breaches.

The first part of the article – covering issues such as the public interest balance, raising new issues in an appeal, and when information is 'held' – can be viewed here.

Eleanor Grey QC is a barrister practicing from 39 Essex Street, London. She has a specialist interest in freedom of information and data protection laws.

While every effort is made to ensure that the content of this article is accurate, it contains general information only and does not constitute legal advice. Specific advice should always be sought on any legal issues of concern.